Practice point: While defendant's motion for summary judgment was pending, plaintiff's counsel moved for permission to withdraw. The motion court granted counsel's application and ordered the case stayed "for 45 days from the date of service of a copy of this order." However, plaintiff was not served with the order, and defendant's motion for summary judgment was heard and granted in plaintiff's absence. The order granting the motion on default directed defendant to settle an order, which was entered. Plaintiff's new counsel moved to vacate these two orders on the ground that the grant of summary judgment while the action was stayed was a nullity.
The Appellate Division agreed, and reversed the motion court. After his former counsel was granted leave to withdraw, the action was stayed by court order and operation of CPLR 321(c). As plaintiff was never served with the order dismissing his attorney, the 45 day stay never expired.
Student note: Defendant cannot avoid the stay by arguing that it did not go into effect until served on plaintiff, since the failure to serve the order cannot accrue to defendant's benefit.
Case: Matos v. City of New York, NY Slip Op 03074 (1st Dept. 2015)
Here is the decision.
Tomorrow's issue: A claim of bus driver negligence.
